Climate lawfare in international courts is a calamitous way to decarbonise the world’s $200 trillion (£159 trillion) economy. It invites the destruction of what remains of political consent for net zero, risking a visceral backlash across the western democracies.
You cannot let judges – let alone foreign judges in supranational courts at the boundaries of legitimacy – have the last say on critical matters of national security, energy supply and economic self-defence in a dangerous world.
The green guards behind the avalanche of climate litigation have found a killer weapon. They know how to turn the soft law of COP climate treaties into binding law, by mobilising articles in the UN Convention or the European Convention. They know how to find friendly legal venues.
On April 9 they scored their greatest coup, winning a sweeping verdict against Switzerland at the European Court of Human Rights (ECHR), a precedent that must henceforth guide the courts of Britain and all 46 members of the Council of Europe. It is one-stop shopping taken to a fine art. Needless to say, none of this has any traction on the world’s autocracies.
The judges ruled that Switzerland had violated the rights to privacy and family life of some 2,000 Swiss grannies by failing to take sufficient steps to mitigate climate change. Aided by Friends of the Earth and some sharp lawyers, the elderly ladies claimed that the Swiss state was exposing them to an increased risk of death from extreme heat – in the Alpine meadows and cantons, of all places.
The British judge, Tim Eicke, issued the sole dissent: not because he differs on climate change, but because the ECHR is making up rights as it goes along, departing from the script of the European Convention. All others went along with the dossier prepared by the missionary staff lawyers of the Strasbourg curia.
“I fear that in this judgment the majority has gone beyond what it is legitimate and permissible for this court to do, and unfortunately, in doing so, may well have achieved exactly the opposite effect to what was intended,” he wrote.
It is a decision of the Grand Chamber, and therefore final. No matter that these affluent grannies are less likely to die of heat in Switzerland than almost anywhere else on Earth; or that the country is a beacon of ecology, with per capita CO2 emissions four times lower than the US, and two times lower than China; or that its hydropower serves as the giant battery for intermittent solar, keeping the lights on in Munich and Milan.
The judges “discovered” this climate right in Article 8, which states that “everyone has the right to respect for his private and family life,” etc. This wording was drafted by British lawyers after World War Two to defend Europe against totalitarian creepage – to stop the Gestapo knocking at the door, so to speak.
The ECHR’s own past rulings make clear that Article 8 is triggered only where the threat is “real and imminent”. The judges have stretched this into something of an entirely different character. “It is a very sinister judgment. They are enacting law, and democracy can go to Hell,” said one jurist with close knowledge of Strasbourg.
The decision has echoes of America’s Roe v Wade ruling in 1973, which struck down abortion laws across half the US states. The US Supreme Court found a right to privacy in the “penumbras” of the 14th Amendment (i.e., it did not exist), and broadened it to cover a woman’s right to choose, rather than leaving this vexed moral matter to elected members of state legislatures.
This act of judicial adventurism had large political consequences. The Moral Majority was born. Southern evangelicals and northern Catholics awoke from political slumber, becoming the shock troops of the Reagan Revolution. The Republicans lurched Right, won the White House in 1980, and kept it for most of the next 28 years.
The ECHR is setting itself up as the enforcer of eco-maximalism over elected leaders, each trying to grapple with the formidable task of trying to go green, in the middle of a cost of living crisis, an energy supply crisis, a European war, a mid-East war, and war fever over Taiwan.
The court should not be surprised if it ends up with no members. The Swiss People’s Party, the largest in parliament, has already called for Switzerland’s withdrawal, calling the ruling “scandalous”.
I have always favoured sticking it out with the ECHR, and trying to reform from within. I am not sure any longer. The court has invented a “positive duty” to pursue social policies of its choosing. It is acting in ways that are fundamentally incompatible with the British Constitution.
There is nothing wrong with the European Convention itself. This country could leave the Council of Europe and retain the text in domestic law, letting the UK Supreme Court determine what Article 8 really means. I hesitate because the ECHR anchors the Good Friday Agreement. But boy, these judges are pushing their luck.
The dam broke on climate lawfare with the Urgenda case in 2019, when Dutch judges ruled that the Netherlands was in breach of international rights law. It forced the government to cut emissions by an extra 5pc in one year, the fastest structural decarbonisation ever in a complex industrial nation. Needless to say, it was done in the most dysfunctional way, under the gun.
It was followed by Shell’s defeat in the Milieudefensie case – Big Oil’s “tobacco moment” – when a Dutch court ruled that the company had to cut its worldwide emissions by 45pc this decade. Such judgments against “good” oil and gas companies chiefly causes them to offload fields to true villains operating outside any oversight, some with methane emissions 40 times higher.
The Dutch people have since spoken, as have other electorates. The Farmer-Citizen protest movement came from nowhere to become the largest party in the Dutch senate. Geert Wilders – foe of the Paris Accord – is today the ascendant figure in Dutch politics.
You cannot achieve net zero in the liberal democracies unless you keep voters on side. Only national governments have the authority to carry through root-and-branch change of the energy system. Only they can navigate this minefield through the electoral cycle.
Salvation is coming in any case, and it may be less painful than feared. The path to net zero is to outcompete the old order with better and cheaper technology, and that is already happening marvellously, thanks in part to capitalist market forces. It will continue to happen at an accelerating pace as long as the lawfare guerrillas stay out of the way.
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